Professor Birdsong’s student, Shellie Ponce, who was enrolled in my comparative Immigration Law class and my Refugee Law Seminar wrote an interesting and timely paper that compares rates of domestic violence and asylum claims in immigrant welcoming countries.  Read and learn more about it.  Ms. Ponce gave her permission to put her piece on my blog.

Domestic Violence & Asylum

A Comparative Analysis Among Immigrant-Welcoming Countries 

By: Shellie Ponce

INTRODUCTION

            Every day women around the world suffer at the hands of their husbands, brothers, parents or parents-in-law due to domestic violence. Most of these women suffer in silence, hiding their bruises, on the outside as well as on the inside. Many women believe there is no way out of the situation, or that they have somehow earned their lot in life. Many remain in the abusive household because there are children involved. Many are beaten for insignificant slights to the family’s honor. Many have alcoholic husbands that beat them while drunk. Many will suffer physical and emotional injuries. Many will die.

            Some women flee their country of origin to escape domestic abuse. They may view the country to which they are fleeing as a safe haven. They may view the new country as a way to start fresh. Some must leave their children, their belongings, and their entire life behind to escape being abused. Women arrive in immigrant-welcoming countries in many different ways- by false passport, by sneaking over a border under cover of night, as “clandestine workers”, and numerous other ways.[1]

            Upon arrival, many women will face a nasty surprise: the country they have run to does not want them. They may be turned away at the point of entry, held in immigration detention facilities, or denied basic care and the means with which to survive in a new country. Or they may wait in limbo for months or years, waiting for their application to either be granted or denied.

In 2011, the Statue of Liberty’s message- “Give me your tired, your poor, your huddled masses yearning to breathe free”[2]– no longer seems to apply to many seeking asylum in the United States. In 2010, the Department of Homeland Security deported over 400,000 people, and the DHS secretary promised to “increase removal levels to ‘historic levels’”.[3]

Why this hostility? Xenophobia, racism, fear of the immigrant “floodgates” opening, and ignorance of actual immigration policies all play a large role in the attitude towards immigration. Many worry about the cost of accepting immigrants into the country, for fear they will become public charges. But it can cost thousands of dollars to deport one illegal immigrant.[4] Others simply believe that immigrants have no place in their country and that they take jobs away from natural-born citizens. But these people forget that all traditional immigrant-welcoming countries are primarily made up of the descendants of immigrants.

Perhaps there is no cure for xenophobia or racism, but there can be a procedural fix for the problems that immigrants, specifically female immigrants, face upon arrival in a historically immigrant-welcoming country.

 

 

 

 

 

II. Who is a Refugee?

 

            A. United Nations Definition

                       

                        1. 1951 Refugee Convention

 

            The United Nations High Commissioner for Refugees (UNHCR) established the 1951 Refugee Convention (“Convention”) originally to deal with the post-World War II chaos that produced 1.25 million refugees.[5] The Convention “not only provided an individualized definition of a refugee but also made it clear that it was an instrument for human rights protection”.[6]

            The definition of a refugee under the 1951 Convention was:

 

            “As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular             social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person         shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the         protection of one of the countries of which he is a national”.[7] 

 

                        2. 1967 Protocol

 

            The Convention was superseded by the 1967 Protocol, under which “the temporal and geographical limits were removed”.[8] The significance of this was that people who were not necessarily victims of World War II and its aftermath could now qualify as refugees, whereas before they could not. 145 countries signed the 1967 Protocol, including the United States (who did not sign the Convention due to internal social and racial tensions), as well as Australia and Canada. [9]

             

III. What is Domestic Violence?

 

 

            A. United Nations Definition of Violence against Women

 

            The United Nations Declaration on the Elimination of Violence against Women [UNDEVW] defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life” [10]

 

            B. Categories of Domestic Violence

 

            Domestic abuse encompasses a broad spectrum of indignities, many of which fall under the radar or are not considered “abuse” per se. To cast a wider net on what is considered domestic violence for the purposes of this article, we will use the United Nations Children’s Fund’s [UNICEF] definition of domestic abuse and violence categories. UNICEF has divided domestic violence into four categories: physical abuse, sexual abuse, psychological abuse and economic abuse.[11]

 

                        1. Physical Abuse

 

            Physical abuse includes slapping, beating, arm twisting, stabbing, strangling, burning, choking, kicking, threats with an object or weapon, and murder. It also includes traditional practices harmful to women such as female genital mutilation (FGM) and wife inheritance (the practice of passing a widow, and her property, to her dead husband’s brother). [12]

 

                        2. Sexual Abuse

 

            Sexual abuse includes coerced sex through threats, intimidation or physical force, forcing unwanted sexual acts or forcing sex with others.[13] Any form of sexual harassment, rape and/or incest would fall under the category of sexual abuse.

 

                        3. Psychological Abuse

 

            Psychological abuse includes behavior that is intended to intimidate and persecute, and takes the form of threats of abandonment or abuse, confinement to the home, surveillance, threats to take away custody of the children, destruction of objects, isolation, verbal aggression and constant humiliation.[14] This type of abuse is the hardest to prove in court due to its intangible nature, and therefore is often not considered abuse for the purposes of asylum.

 

                        4. Economic Abuse

 

            Economic abuse includes acts such as the denial of funds, refusal to contribute financially [to the household], denial of food and basic needs, and controlling access to health care and/or employment.[15]

 

            C. Violence against Women throughout the Life Cycle

 

            Violence towards women sometimes begins before birth and can continue throughout a woman’s life, even through old age. Pre-birth abuse includes sex-selective abortion and the effects of battering the mother during pregnancy. Abuse at infancy includes female infanticide or neglect.[16]

Girlhood abuse consists of child marriage, female genital mutilation (FGM), physical, sexual and psychological abuse, incest, child prostitution and pornography. Adolescent abuse includes dating and courtship violence (e.g. acid throwing and date rape).[17]

            Adulthood violence includes economically coerced sex, incest, sexual abuse in the workplace, rape, sexual harassment, forced prostitution and pornography, trafficking in women, partner violence, marital rape, dowry abuse and murders, partner homicide, psychological abuse, and/or forced pregnancy. Abuse of the elderly includes forced “suicide” or homicide of widows for economic reasons and sexual, physical and psychological abuse.[18]

 

            D. Reported Domestic Violence Statistics

 

            Women are abused in their own homes around the world. Reported rates of domestic violence vary widely because many women are unable or unwilling to report the violence either to police authorities or to non-governmental humanitarian organizations. The following statistics must be understood with this in mind.

            According to the World Health Organization (WHO), the country with the highest rate of reported violence against women and girls is Poland (60%)[19]. In stark contrast, other Eastern European countries show much lower rates of violence (Russia 25%, Tajikistan 23%)[20], but these rates are more likely due to lack of reporting, as the prevalence of forced prostitution and human trafficking is well documented. Thousands of Russian women are trafficked every year into the European Union, Southeast Asia, and the United States for purposes of sex trade. Much of this trafficking is carried out by other women, who may or may not have once been victims of sex trafficking themselves.[21]

            On the other side of the world, Mexico reports a much lower rate of domestic abuse, but as we will see later, this in all likelihood does not reflect accurate rates of abuse but rather lack of police action, as we will see in section IV.

 

IV. Gaining Refugee Status as a Female Victim of Domestic Violence

 

           

            A. United States

 

                        1. Rules & Procedures

 

            The process for applying for refugee status or asylum seems fairly straight-forward but can in fact be a lengthy and costly affair. The applicant fills out an I-589 form (Application for Asylum and for Withholding of Removal) with the U.S. Citizenship and Immigration Services (USCIS). She must then prove that she has previously been, or has fear of being persecuted on account of one of the five traditional bases for asylum.[22]

            After an interview with the USCIS, if approved, the applicant may stay in the United States for one year. If the application is denied, then a lengthy appeals process may be commenced.

                       

2. Woman Granted Asylum Based on Domestic Violence

           

a. Matter of R_A_

 

            A landmark case in U.S. asylum law dealing with women was the case of Rodi Alvarado (R_A_). Ms. Alvarado was a Guatemalan citizen who suffered extreme domestic violence at the hands of her husband. After fleeing to the United States, she was finally granted asylum in 2009 after fourteen years of appeals. According to The Guardian, “[h]er case has been at the centre of a tangled and politicized dispute over the legitimacy of claims for protection from physical abuse”.[23]

                                   

b. Matter of LR

 

            Another woman, LR, suffered abuse for over twenty years. Her husband raped her at gunpoint, broke her nose during one assault, and “doused her bed with kerosene as she was sleeping and set it alight” after learning that she was pregnant. She reported the abuse to the police, but they did nothing and dismissed her complaints as a “private matter”.[24] “The Department of Homeland Security has told an immigration court that it regards the woman…as potentially having grounds to apply for political asylum because she feared she would be murdered by her common-law husband who repeatedly raped her at gunpoint and tried to burn her alive when he discovered she was pregnant.”[25]

            Ms. L.R.’s attorneys argued that she was a member of a social group defined by her gender and inability to leave an abusive domestic relationship. The immigration judge (IJ) rejected this social group and LR appealed.[26]

            LR’s case relied heavily on Matter of R_A_ as precedent. Her application was approved on summary order (with no explanation) at the discretion of the IJ in August 2010, after six years of appeals.[27]

 

3. Woman Denied Asylum Based on Domestic Violence

a. Asylum Denied For Abused Girl; Ruling of Appeals Panel Is Assailed

 

“A 16-year-old Mexican girl who says she endured a lifetime of abuse from her father is not entitled to asylum in the United States under current immigration laws and must be returned home, a federal immigration appeals board ruled [in June 1999] in overturning a judge’s asylum grant”.[28] 

The Mexican girl, whose name was not revealed, used a relative’s passport to enter the United States last year and was detained in Los Angeles. She told authorities that from the time she was 3 years old her father had beaten her with whips, tree branches, his fists and a hose. The beatings caused her to be knocked unconscious, she said, and left her with scars and a dislocated elbow. The beatings often happened when she tried to intervene in beatings her father was inflicting on her mother. She said her mother told her not to turn to the police.[29]

            “The…decision by a three-judge Board of Immigration Appeals (BIA) panel demonstrates again the panel’s reluctance to read too broadly the laws governing asylum. But some advocates argue that it offers another example of the immigration system’s insensitivity toward the special problems of children and women who flee to the United States seeking protection”.[30]

            Although the girl’s testimony of abuse from her parents was not questioned, the Board of Immigration Appeals (BIA) rejected the judge’s determination.[31] The decision was not published and was decided a week after Matter of R_A_’s 1999 asylum grant was overturned.[32]

B. Australia

 

                        1. Rules & Procedures

 

            “Since 1993 Australia has had a two stage administrative determination procedure… An asylum seeker lodges an application for refugee status with the Department of Immigration and Citizenship (DIAC). The written application is then assessed by an officer of the Department to establish whether the person’s claims are such as to fit the criteria for the grant of refugee status… If a claim is rejected at the primary stage, the asylum seeker then has the option to lodge an application for a review of this decision”.[33] A denied application has only a 10% chance of being overturned on appeal. Upon denial by the appeals court (Refugee Review Tribunal, or RRT), a federal court may only review “whether the determination was conducted in accordance with the law”, not on the merits of the claim.[34]

            “Historically, applicants whose asylum claims are based on family violence have faced difficulties meeting the definition of a refugee in art 1A(2) of the Refugees Convention, both internationally, and in Australia. While it is generally accepted that instances of family violence can constitute serious harm, two compounding and interlinking factors have historically excluded victims of family violence from protection under the Convention. These are: family violence claims in the context of gender-related persecution and the public/private dichotomy.”[35]

2. Woman Granted Asylum Based on Domestic Violence

 

1. a.       Minister for Immigration and Multicultural Affairs v Khawar[36]

 

In 2002, the High Court granted asylum to a Pakistani woman who suffered “serious and prolonged” domestic violence at the hands of her husband.[37] Ms. Khawar had repeatedly been refused assistance by the Pakistani police. This decision affirmed that persecution may be carried out by non-state agents, “and that the State’s only involvement may be the failure to provide protection”.[38]

The case commenced in 1999, so while Ms. Khawar’s case was comparatively short, she still had to appeal it all the way up to the highest court in Australia. Her original application for a protection visa was denied, as was her appeal to the RRT. The reasoning given by the RRT was that the violence “was motivated by personal considerations involving Ms (sic) Khawar’s lack of a dowry and her husband’s family’s dislike of her. It was, therefore, not relevant to the Refugee Convention.”[39]

The year before the Khawar decision was released, three acts had been passed regarding immigration in Australia. These acts, the Migration Amendment (Excision from Migration Zone) Act, the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act, and the Border Protection (Validation and Enforcement Powers) Act, “ are intended to discourage unauthorised entry into Australia, deter people smugglers and increase the legal response to people arriving in Australia unlawfully”.[40]          

C. Canada

 

1. 1.      Rules & Procedures

 

As of 2009 the acceptance rate by the Refugee Protection Division for claims based on domestic violence was 2%.[41] “From 2004 to 2009 there were a total of 135 decisions by adjudicators of the Refugee Protection Division of the Immigration and Refugee Board (“RPD”) that were reported…where a woman sought protection from spousal violence. Three of those women were granted refuge. One hundred thirty-two claimants were rejected. The majority of these women were rejected on the basis that they had failed to rebut the presumption that their home state could protect them”.[42]

            According to Citizenship and Immigration Canada, Bill C-11, the Balanced Refugee Reform Act has “received Royal Assent”. These reforms will improve Canada’s asylum system, resettle more refugees from abroad and make it easier for refugees to start their lives in this country. The changes to the asylum system will come into effect on June 29, 2012.[43]

            According to Bill C-11, “[u]nder these reforms, all eligible asylum claimants will continue to receive a fair hearing based on their personal situation and will have avenues for appeal.”[44] These new measures include “changes at the Immigration and Refugee Board (IRB), adding a Refugee Appeal Division at the IRB, authority to designate countries of origin, identifying manifestly unfounded claims, timely removals of failed asylum claimants, limits on pre-removal risk assessments, changes to the humanitarian and temporary resident permit provisions [as well as other provisions]”.[45]

            There are no provisions based on gender or victims of domestic violence. The only substantial (as opposed to procedural) change to refugee criteria is that of “countries of origin”. While Bill C-11 is a small step in the right direction for refugees in general, it is not specifically addressing the issue of female victims of domestic violence and therefore cannot be considered a giant leap for womankind.

 

                        2. Woman Granted Asylum Based on Domestic Violence

 

1. a.       Marie Madeleine Corneau v. Minister of Citizenship and Immigration

 

Ms. Corneau was a citizen of St. Lucia who was severely beaten by her husband. She requested police assistance but was denied. In 2004, after her husband almost strangled her to death, she fled to Canada, where her children already lived.[46] She filed her case for asylum in Canada in 2008. The delay in applying was not at issue in the court’s decision.[47]

“The Refugee Protection Division of the Immigration and Refugee Board determined that the applicant was neither a Convention refugee nor a person in need of protection because adequate state protection was available to her in Saint Lucia.” The determining factor in this case was that of “state protection”. [48]

Corneau appealed this decision to the Minister of Citizenship and Immigration (Minister). The Minister decided that police protection in Saint Lucia was indeed insufficient and that because the island was so small, problems with police protection could not be mere “local failures”, as the lower court claimed in denying Corneau’s application.[49]

In June 2011, after three years of appeals and waiting, Corneau was finally granted asylum by the Minister.[50]

 

V. Problems Facing Female Victims of Domestic Violence Seeking Refugee Status

 

 

            The United States has historically “promulgated refugee law that reflects international human rights standards”.[51] But the Department of Justice (DOJ) is “stalling on the issue of whether…victims of domestic violence…should be granted protection under U.S. asylum law”.[52]         In 1994, the United Nations issued the Declaration on the Elimination of Violence against Women, which defined what constituted domestic violence. [53] The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was passed and implemented in 1981.[54]

            This convention describes discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.[55]

            CEDAW establishes the guidelines for the proper implementation of the Declaration, including the protection of rights such as education, health care and reproductive care, and to establish legislation guaranteeing these rights as well as sanctions for violations of the terms of CEDAW.[56]

             The United States is “the only developed nation that has not ratified [the convention].[57] This sends a message to the international community that the United States is not committed to protecting women seeking refugee status.

            United States courts “currently grant asylum in certain types of gender-based violence cases”, such as FGM, honor killings and forced marriages.[58] The United States is still behind, though, in “considering domestic violence a persecutory crime”.[59]

            Landmark cases demonstrating progress within refugee law for female victims of domestic violence are few. Matter of D-V-[60] held that the rape of a Haitian woman by the Haitian military did indeed constitute persecution. But this case was only set a partial precedent- as the persecution was carried out by those acting under color of law, it did not “recognize persecution by non-state actors where a government is unable or unwilling to protect a victim”.[61] Three years later in Matter of Kasinga[62], the U.S. government recognized FGM as a form of persecution that was not by actors on behalf of the state. This was a marginal step forward in U.S. asylum law, however, because this decision only set a precedent for one type of persecution or abuse.

            In a stark contrast to the United States, Australia and Canada have signed both the UNDEVW and the CEDAW. This does not, however, as demonstrated in our case studies[63], guarantee complete protection for women seeking asylum in these countries as a result of domestic violence.

 

VI. The Model Legislation

 

 

            A. Amending the Definition of “Refugee”

 

            I propose that the UNHCR’s definition of a refugee, as well as the INA definition, be amended by adding only one word to Article 1A(2) of the UNHCR and INA §101(a)(42) : gender.

            The new definition of a refugee would include six categories under which a person may claim refugee status:

…owing to well-founded fear of being persecuted for reasons of gender, race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country…[64]

 

 

VII. Conclusion

 

 

            The problem of female victims being denied asylum, or only granted asylum after years of appeals, is a quite simple issue to redress. It would not be easy, but it would be simple.

            There is still no clear social group that a woman claiming asylum based on domestic violence can rely upon. Claims are decided on a case-by-case basis at the discretion of the judge. Currently the United States national average percentage of refugees (of all sorts) winning asylum is 40%, with city and state rates ranging from 12% to 54%.[65]

            Although some women’s request for asylum applications are granted, it generally takes years of appeals because there is no clear provision in either international or United States asylum law for female victims of domestic violence. The asylum process in all three countries we have examined show the same pattern: application is denied, then after many years of waiting, the appeal may or may not be granted.

Even if the appeal is granted, the woman seeking asylum must wait in limbo, not enjoying the full privileges of a legal immigrant in the country in which she has sought refuge, and never being secure that she will not be deported at any time.

            The practice colloquially known as “refugee roulette” describes the arbitrary nature of the system in which an immigration judge has vast discretionary power. This discretion can be an enormous hindrance to desperate women who are longing to live a life free of violence.

            The addition of just one word to the vast document that is the United Nations Human Rights Convention would mean thousands of lives saved all over the world. It is the duty of the international community at large, the United Nations, and immigrant-welcoming nations to ensure that women are not excluded from refugee status simply because they do not fit into the extremely vague category of “particular social group”.